Citation Nr: 0627161
Decision Date: 08/28/06 Archive Date: 09/06/06
DOCKET NO. 04-40 584 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for a skin condition of
the head and hands, as secondary to exposure to the herbicide
Agent Orange.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L.J. Bakke, Counsel
INTRODUCTION
The veteran served on active duty from September 1967 to May
1969. Available service personnel records further show that
the veteran served in the reserves from May 1969 to September
1973, and that he re-enlisted in the reserves in October
1973. The dates of this last enlistment have not been
verified.
This appeal arises before the Board of Veterans' Appeals
(Board) from rating decisions rendered in November 2003 and
May 2005 by the Department of Veterans Affairs (VA) Regional
Office (RO).
This case was remanded in March 2006, in order to afford the
veteran an opportunity to testify before a Veterans Law
Judge. The veteran testified before the undersigned Veterans
Law Judge in May 2006. The hearing transcript has been
associated with the claims file.
The issue of entitlement to a skin condition of the head and
hands, secondary to exposure to the herbicide Agent Orange,
is addressed in the REMAND portion of the decision below and
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDING OF FACT
The medical evidence does not establish that the veteran's
currently diagnosed bilateral hearing loss is the result of
active service or was manifest within the year following
discharge from active service.
CONCLUSION OF LAW
Bilateral hearing loss was not incurred in service and
service connection for bilateral hearing loss may not be
presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137,
5107(b) (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307,
3.309, 3.385 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA amended VA's duties to notify and to assist a
claimant in developing information and evidence necessary to
substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A;
38 C.F.R. § 3.159. Under 38 U.S.C.A. § 5103(a), VA must
notify the claimant of the information and evidence not of
record that is necessary to substantiate the claim, which
information and evidence VA will obtain, and which
information and evidence the claimant is expected to provide.
Under 38 C.F.R. § 3.159, VA must request that the claimant
provide any evidence in the claimant's possession that
pertains to the claim.
The VCAA notice requirements apply to all five elements of a
service connection claim. The five elements are: 1) veteran
status; 2) existence of a disability; (3) a connection
between the veteran's service and the disability; 4) degree
of disability; and 5) effective date of the disability.
Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The VCAA notice must be provided to a claimant before the
initial unfavorable adjudication by the RO.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The RO provided pre-adjudication VCAA notice by letter dated
in January 2005. The notice informed the veteran of the type
of evidence needed to substantiate the claim of service
connection, namely, evidence of an injury, disease, or event
causing an injury or disease during service; evidence of
current disability; and evidence of a relationship between
the current disability and the injury, disease, or event
causing an injury or disease during service. The veteran was
also informed that VA would obtain service records, VA
records and records of other Federal agencies, and that he
could submit other records not in the custody of a Federal
agency, such as private medical records, or with his
authorization VA would obtain any such records on his behalf.
He was asked to submit evidence, which would include that in
his possession, in support of his claims. Subsequent
additional notice was provided in March 2005 and April 2006,
including the criteria for rating the claimed disability and
on establishing an effective date should the claim be
granted.
As for content of the VCAA notice, the documents
substantially complied with the specificity requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate a claim and the relative duties of
VA and the claimant to obtain evidence), of Charles v.
Principi, 16 Vet. App. 370 (2002) (identifying the document
that satisfies VCAA notice); of Pelegrini v. Principi,
18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and of
Dingess v. Nicholson, 19 Vet. App. 473 (notice was provided
on all of the five elements of a service connection claim).
The action of the RO described above provided a meaningful
opportunity to participate effectively in the processing of
the claim and to submit additional argument and evidence,
which he did, and to address the issues at a hearing, which
he also did. For these reasons, any procedural defect caused
by the timing of notice was cured and the veteran has not
been prejudiced by any defect in the VCAA notice.
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, No.05-7157 (Fed. Cir. Apr. 5, 2006).
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate the claims. The RO obtained the veteran's
available service medical records, VA records, and private
medical records. Also the veteran was afforded VA
examinations.
The veteran has identified no additional records to obtain,
pertinent to this claim, which have not been obtained or
sought by the AOJ. Hence, in the present case, with respect
to the specific issue of service connection for bilateral
hearing loss, the Board concludes that no further assistance
to the veteran in developing the facts pertinent to the claim
of service connection is required to comply with the duty to
assist. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
Service Connection for Bilateral Hearing Loss
Service connection may be established for disability
resulting from personal injury or disease incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131 .
Service connection may be established where all the evidence
of record, including that pertinent to service, demonstrates
that the veteran's current disability was incurred in
service. 38 C.F.R. § 3.303(d).
Continuous service for 90 days or more during a period of war
or peace time service after December 31, 1946, and post-
service development of a presumptive disease such as
sensorineural hearing loss to a degree of 10 percent within
one year from the date of termination of such service,
establishes a rebuttable presumption that the disease was
incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1137;
38 C.F.R. §§ 3.307, 3.309.
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2005).
The veteran contends that he suffers from bilateral hearing
loss is the result of acoustic trauma sustained in combat
conditions during his active service.
In the present case, the medical evidence establishes that
the veteran has been diagnosed with bilateral hearing loss.
However, the medical evidence does not show that the
disability was diagnosed within the year following the
veteran's discharge from service, or that the disability is
otherwise the result of the veteran's service.
The veteran's hearing was tested prior to his induction into
service. Audiological tests conducted in September 1967
reveal normal hearing within the meaning of 38 C.F.R.
§ 3.385. Auditory thresholds at frequencies 500 through 4000
Herz were measured at 10 to 25 decibels. The veteran's
medical examination at discharge from active service, dated
in May 1969, does not show that the veteran's hearing was
then evaluated. However, subsequent medical examinations
conducted during his reserve service, dated in October 1973
and in October 1980, reflect findings within normal limits
within the meaning of 38 C.F.R. § 3.385. In October 1973,
auditory thresholds at frequencies 500 through 4000 Herz were
measured at zero and 5 decibels and, in October 1980, at 20
through 25 decibels with only one measurement at greater than
26, 30 decibels at 4000 Herz, on the left. The service
medical records contain no complaints or findings of either
hearing loss.
The Board is cognizant of the veteran's status as a combat
veteran and exposure to noise or acoustic trauma is
consistent with the circumstances and conditions of such
service. 38 U.S.C.A. § 1154. However, the analysis does not
end here. The veteran must show that he has hearing
impairment that is the result of the in-service noise or
acoustic trauma.
After service, private medical records from the veteran's
employer reflect that he underwent audiological examination
in May 1969. At this time, auditory thresholds at
frequencies 500 through 4000 Herz were found to measure 10 to
15 decibels-again, normal within the meaning of 38 C.F.R.
§ 3.385. Rather, the record does not show that the veteran
exhibited hearing loss within the meaning of the regulations
until December 1992, when auditory thresholds measured 50 and
45 at 3000 and 4000 Herz, respectively, on the left. On the
right, auditory thresholds measured above 26 in only two
frequencies at 500 through 4000 Herz. It is not until
December 1994 that hearing loss was exhibited in the right
ear, within the meaning of 38 C.F.R. § 3.385.
VA examination conducted in February 2005 confirmed bilateral
sensorineural hearing loss within the meaning of the
regulations. In pertinent part, speech recognition was found
to be 72 percent in the left ear and 70 percent in the right
ear, with auditory thresholds of 55 at 3000 and 4000 Herz,
respectively, in the left ear and, in the right, at 40 and 50
at 3000 and 4000, respectively.
The examiner was asked to offer an opinion as to the etiology
of the veteran's manifested hearing loss and, accordingly,
stated that test results in the veteran's records indicate
that the hearing loss is a direct result of noise exposure
from the factory where he worked as a civilian. In a second
statement proffered in March 2005, the examiner clarified
that the veteran's manifested hearing loss was not caused by
or a result of the noise the veteran was exposed to during
his military service. The examiner explained that the
rationale for this opinion was deduced from looking through
the veteran's service medical records as well as medical
records showing hearing tests conducted by the veteran's
employer post-service. These records clearly revealed that
the veteran did not exhibit hearing loss until 1992, or 12
years following the last dated examination in the claims
file.
The Board notes that the veteran has provided a private
medical examination reflecting a history of hearing loss
since 1969. In a January 2005 statement, the private
examining audiologist noted that the veteran reported a
significant history of noise exposure and that he is service-
connected for hearing loss due to his Vietnam service and
exposure to asphalt machinery. While this would seem to
support the veteran's contentions, the Board finds that it
does not. This is because the audiologist's statement is
based on the veteran's reported history alone, without any
reference to the veteran's service medical records.
Moreover, the veteran was clearly not then service connected
for bilateral hearing loss. Thus, to the extent that the
audiologist's statement may be construed as an opinion, it is
not only based on an incomplete record, but is further
predicated on a misunderstanding of that record.
The Board notes that the Court has held that a bare
conclusion, even one reached by a health care professional,
is not probative without a factual predicate in the record.
Miller v. West, 11 Vet. App. 345, 348 (1998). Finally, a
bare transcription of lay history, unenhanced by additional
comment by the transcriber, is not competent medical evidence
merely because the transcriber is a health care professional.
LeShore v. Brown, 8 Vet. App. 406, 409 (1995), as a medical
professional is not competent to opine as to matters outside
the scope of his expertise. Id; citing Layno v. Brown, 6
Vet. App. 465, 469 (1994). See also Bloom v. West, 12 Vet.
App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177, 180
(1995); Reonal v. Brown, 5 Vet. App. 458, 461 (1993).
The veteran filed his claim of service connection for hearing
loss in July 2003. The first medical evidence of hearing
loss is in December 1992, more than 22 years after the
veteran's discharge from service and well beyond the one-year
presumptive period. While private and VA medical evidence
does reflect findings of bilateral hearing loss, the record
is absent an opinion etiologically relates the disability to
the veteran's active service. Moreover, the examiner who
conducted the February 2005 VA examination specifically
opined that the manifested hearing loss was the result of the
veteran's post-service, civilian work-related exposure to
noise, rather than the result of his active service.
As for the probative weight of the veteran's statements,
where, as here, the determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
of nexus or relationship between the post-service diagnosis
of hearing loss and service is required to support the claim.
The veteran as a layperson is not competent to offer a
medical opinion and consequently his statements to the extent
that he associates the post-service diagnosis to service does
not constitute medical evidence. Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993). Therefore, the Board must reject the
veteran's statements as favorable evidence linking post-
service hearing loss to service. Absent medical evidence of
a causal link between the currently diagnosed hearing loss
and the veteran's service, the Board finds the claim for
service connection must be denied.
As the Board may consider only independent medical evidence
to support its findings and as the preponderance of that
medical evidence is against the claim, entitlement to service
connection for hearing loss is not established. 38 U.S.C.A.
§ 5107(b).
ORDER
Service connection for bilateral hearing loss is denied.
REMAND
As above noted, the veteran also seeks service connection for
a skin condition of the head and hands, as secondary to
exposure to the herbicide Agent Orange. The record shows
that the veteran had the requisite service in Vietnam to
presume exposure to Agent Orange. However, he has not been
diagnosed with a skin condition that may so be presumptively
service connected. See 38 C.F.R. §§ 3.307, 3.309 (2005).
Notwithstanding, the Board observes that direct service
connection may be granted without regard for the presumption
offered, should the evidence support an etiological link
between the veteran's active service and the diagnosed skin
conditions. The medical evidence reflects that the veteran
has complained of and been treated for various skin
conditions, to include actinic keratosis, an allergic
reaction (which resolved), and a chronic condition on his
arms which, according to an examination conducted in January
2005 for the Agent Orange registry, has persisted since 2002.
VA treatment records also show that the veteran exhibited a
skin abnormality on his right temporal area that his
physician wanted to watch. The veteran gave a history of
heavy sun exposure both before and after active service
during his Agent Orange registry examination, and testified
before the undersigned Veterans Law Judge that he had
sustained heavy sun exposure, including blistering sun burns
during active service. Service medical records do reveal
treatment for what was described as a boil on his back.
Given that the veteran had verified service in Vietnam, was
treated in service for a skin abnormality, and that he now
has a variety of skin conditions, the Board finds that it
would be helpful to afford him an examination to clarify the
nature, extent, and etiology of his currently manifested skin
conditions, to include review of the entire claims file.
38 C.F.R. § 3.159(c)(4) (2005).
Accordingly, the case is REMANDED for the following action:
1. Obtain any additional treatment
records from the VA Medical Center (VAMC)
in Lexington, Kentucky, since August
2005.
2. Following completion of #1 above,
make arrangements for the veteran to be
afforded examinations by the appropriate
specialists to determine the nature,
extent, and etiology of any manifested
skin condition. All indicated tests and
studies should be performed. The claims
folder, including all newly obtained
evidence, the veteran's May 2006
testimony, and a copy of this remand,
must be sent to the examiner for review.
The examiner should summarize the medical
history, including the onset and course
of any manifested skin condition;
describe any current symptoms and
manifestations attributed to the claimed
skin condition; provide diagnoses for any
and all skin pathology.
The examiner(s) are asked to provide
opinions for the following questions:
(1) Is it as likely as not
that any manifested skin
condition is in whole or in
part the result of exposure to
the herbicide Agent Orange, or
(2) In the alternative, is it
as likely as not that any
manifested skin condition is in
any way the result of his
active service or any incident
thereof, to include sun
exposure?
The examiner is asked to provide a
complete rationale for his or her opinion
and, if an opinion cannot be made, to so
state.
3. After undertaking any other
development deemed essential in addition
to that specified above, readjudicate the
veteran's claims for service connection
for a skin condition (to include
consideration of Wagner v. Principi, 370
F. 3d 1089 (Fed. Cir. 2004), if
appropriate), with application of all
appropriate laws and regulations, and
consideration of any additional
information obtained as a result of this
remand. If the decision remands adverse
to the veteran, furnish him with an SSOC
and afford a reasonable period of time
within which to respond thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
action until he is so informed. The veteran has the right to
submit additional evidence and argument on the matter or
matters the Board has remanded. Kutscherousky v. West, 12
Vet. App. 369 (1999). The veteran is advised that failure to
appear for scheduled VA examination without good cause could
result in the denial of his claims. 38 C.F.R. § 3.655
(2005). See Connolly v. Derwinski, 1 Vet. App. 566, 569
(1991). The Board intimates no opinion as to the ultimate
outcome of this case.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs